Opinion
No. 2023-00296 Index No. 14396/11
07-17-2024
L & L Capital Partners, LLC, plaintiff-respondent, v. Elohim, Inc., et al., appellants, et al., defendants; 44 Rockaway SI, LLC, nonparty-respondent.
Alice A. Nicholson, Brooklyn, NY, for appellants. Jason J. Rebhun, P.C., New York, NY (John A. Borelli of counsel), for nonparty-respondent.
Alice A. Nicholson, Brooklyn, NY, for appellants.
Jason J. Rebhun, P.C., New York, NY (John A. Borelli of counsel), for nonparty-respondent.
VALERIE BRATHWAITE NELSON, J.P. JOSEPH J. MALTESE LINDA CHRISTOPHER CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Elohim, Inc., Jean Claude Francois, and Louisena Francois appeal from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated October 12, 2022. The order denied those defendants' motion to set aside the foreclosure sale of the subject property and to vacate the referee's deed.
ORDERED that the order is affirmed, with costs.
In June 2011, this action was commenced against the defendants Elohim, Inc., Louisena Francois, and Jean Claude Francois (hereinafter collectively the defendants), among others, to foreclose a mortgage on certain real property located in Brooklyn. In a judgment of foreclosure and sale dated December 10, 2019, in favor of the plaintiff, the Supreme Court, inter alia, directed the foreclosure sale of the property. After the property was sold at auction, it was transferred by referee's deed to a nonparty, which, in turn, sold the property to nonparty 44 Rockaway SI, LLC.
In August 2022, the defendants moved to set aside the foreclosure sale and to vacate the referee's deed, contending that the plaintiff failed to serve them with a notice of sale, depriving them of their right to redeem the property. The plaintiff opposed the motion. By order dated October 12, 2022, the Supreme Court denied the defendants' motion. The defendants appeal.
"Parties to an action involving the sale of real property pursuant to a judgment, who have appeared in the action and have not waived service, are entitled to have served upon them, pursuant to CPLR 2103, all papers in the action, including a notice of sale" (Wells Fargo Bank, N.A. v Ramphal, 172 A.D.3d 1280, 1281). CPLR 2003 authorizes the court to set aside a judicial sale within one year "for a failure to comply with the requirements of the civil practice law and rules as to the notice, time or manner of such sale, if a substantial right of a party was prejudiced by the defect" (Guardian Loan Co. v Early, 47 N.Y.2d 515, 520 [internal quotation marks omitted]; see U.S. Bank Trust, N.A. v Caputo, 204 A.D.3d 725, 726). Similarly, RPAPL 231(6) provides that "[a]t any time within one year after the sale, but not thereafter, the court, upon such terms as may be just, may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect" (see U.S. Bank Trust, N.A. v Caputo, 204 A.D.3d at 726; Wells Fargo Bank, N.A. v Ramphal, 172 A.D.3d at 1281).
Here, the plaintiff's submissions in opposition to the defendants' motion constituted prima facie evidence of proper service of the notice of sale (see Rolling Acres Developers, LLC v Montinat, 166 A.D.3d 696), and the defendants' bare and unsubstantiated denials of receipt were insufficient to rebut the plaintiff's showing (see Scarano v Scarano, 63 A.D.3d 716, 716; see also Citibank, N.A. v Conti-Scheurer, 172 A.D.3d 17, 23). Furthermore, the defendants failed to establish that they were prejudiced by any defect in service of the notice of sale (see Wilmington Sav. Fund Socy., FSB v Brockett, 219 A.D.3d 548, 549; MTGLQ Invs., L.P. v Goddard, 203 A.D.3d 819, 820; Wells Fargo Bank, N.A. v Ramphal, 172 A.D.3d at 1282; cf. 38-12 Astoria Blvd., LLC v Ramos, 203 A.D.3d 790, 791).
The remaining contentions of nonparty 44 Rockaway SI, LLC, are without merit.
Accordingly, the Supreme Court properly denied the defendants' motion to set aside the foreclosure sale of the subject property and to vacate the referee's deed.
BRATHWAITE NELSON, J.P., MALTESE, CHRISTOPHER and LANDICINO, JJ., concur.